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From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Sunday, 7 December 2014

Over the past few months a good part of this Kat's
thoughts has been devoted to hyperlinking and copyright, courtesy of the
reference that the Svea Court of Appeal (Sweden) made to the Court of Justice
of the European Union (CJEU) in Svensson[hereandhere; the Court confirmed its value as a
precedent a few weeks ago in its quick order inBestWater, a case concerning embedded
videos].

Among all the questions raised by Svensson,
this Kat could not help but wonder what happened to the national proceedings
following the decision of the CJEU. So she thought of asking Swedish Katfriend
and Chair of the Study Group that proposed the latest ALAI Opinion, Jan
Rosén (Stockholm University), to help.

The
CJEU’s milestone decision in Svensson, about the question of
whether hyperlinking to subject-matter which is protected by copyright requires
the permission of the rightholder, offers a ruling elucidating some important
issues on contemporary communication and making available to the public on the
internet. In doing so, the CJEU certainly gave a correct and positive
response to the basic question of whether hyperlinking is (interactive) making
available/communication.

The Court stressed that the concept of communication to the public includes
two cumulative criteria - an ‘act of communication’ of a work and the
communication of that work to a ‘public’ - and that the existence of an ‘act of communication’
must be construed broadly (referring to FAPL,
[193]), in order to ensure, in accordance with recitals 4 and 9 in the preamble
to Directive
2001/29, a high level of protection for copyright holders (at [16], quoting
TVCatchup,
[21] and [31]).

A cuter type of linking than the one addressed by the CJEU

At
[18] in Svensson the court laconically noted that, under the circumstances of the
case, the provision on a website of clickable links to protected works,
published without any access restrictions on another site, affords users of the
first site direct access to those works.

As later confirmed by the CJEU in BestWater,
the technical means by which a linking measure is accomplished are as a matter
of principle irrelevant, thereby supporting a somewhat technology
neutral approach to communication to the public, be it standard
in-line links, framing or embedded measures.

Further (at [19]) the CJEU stated that it “is apparent from Article 3(1) of
Directive 2001/29, for there to be an ‘act of communication’, [that] it is
sufficient, in particular, that a work is made available to a public in such a
way that the persons forming that public may access it, irrespective of whether
they avail themselves of that opportunity (see, by analogy, Case C‑306/05 SGAE[2006] ECR I‑11519, paragraph 43).”

Hereby, the CJEU confirmed that the enabling
effect of a measure to potentially address a public is sufficient for
it to trigger use of the basic right of communication to the public; posting a
work on a website, just as rigging a link to a work thereby accessible by the
public, falls within the scope of the exclusive right of communication to the
public. It is irrelevant if anyone actually avails himself of this opportunity.
No actual “transfer” of the work to the public is needed in order to make a
communication to the public.

In this respect the Svensson decision is completely in line with the Opinion
on hypertext linking, agreed by the Executive Committee of the ALAI -
representing copyright experts of some 30 national groups - on 16 September
2013.

Problems arise when the
CJEU in Svensson introduced, as to the question of whether an
act concerns a communication to "the public", a rigid “new public” criterion,
qualified by, inter alia, an equally problematic new “specific
technical means” criterion.

The
“new public” criterion was somewhat developed in CJEU earlier case law (seeSGAE; Del
Corso; TVCatchup), but became
somehow of a more strict nature in Svensson and BestWater.

Is this the public the relevant rightholder had in mind?

As
applied in Svensson, the “new public” criterion has the effect of
inappropriate exhaustion of the exclusive right of
communication to the public of works which their authors or other rightowners
have made available over generally accessible websites. This criterion is
obviously inconsistent with the right of communication to the public within the
Berne
Convention and the WIPO Copyright
Treaty, as well as with the provisions of Directive 2001/29.

Moreover,
to the extent Svensson indicates that a the “new public”
criterion will not apply if restrictions accompany the making available of a work,
the decision risks establishing an obligation to reserve rights or protect
works etc. by technical protection measures, in violation of the Berne
Convention’s prohibition of formalities that condition the exercise of
exclusive rights.

In
plain English: if authors do not prevent free access to works posted on a
website, they no longer have the right to prevent others to communicate it to
the public via links pointing at those freely accessible works.

At [23] the CJEU stated that the manager of linking
measures is factually making a communication to a public under the
circumstances of the Svensson case.
But the links did not address [24] “a
public that was not taken into account by the copyright holders when they
authorised the initial communication to the public” (at 24) - “all Internet users could therefore have free
access to them” [25] - and were accomplished “by the same technical means” as in the case of the initial
communication. Accordingly, those measures did not lead to the works in
question being communicated to a new public.

The CJEU laconically concluded [28] that “since there is no new public, the
authorisation of the copyright holders is not required for a communication to
the public such as that in the main proceedings.”

However, the reference to the circumstances at hand
in the main proceedings was not adequate.

The CJEU must have understood those to mean that
works of Svensson et al. actually were freely accessible for that period under
which the linking measures in question were active.

Kat-exclusive image of the settlement negotiations

In fact, this was not the case!

All works posted on the source website, www.gp.se, run by the morning paper GP (Göteborgs
Posten), were openly accessible merely for a period of three weeks from the day
of first upload on the source website. After such a period a personal code was
needed to access the works on the source website, which is a possibility
normally offered to subscribers of the paper edition of GP. Hence, Retriever’s
links to works at the www.gp.se website
normally passed through a wall to a restricted area.

Retriever and Svensson et al. settled the Swedish
case out of court. As the linking measures in question offered access to works
on the www.gp.se website that was
subject to restrictive measures, thus afforded a communication to a new public,
a consent from the rightsowners had been necessary. This must have formed the
basis for the settlement (which was and is secret), certainly leaving Svensson
et al. with a very attractive end of the story.

Svensson et al. may have been, on their part,
content with the outcome of the case. Still, the introduction by the CJEU of the “new public”
criterion is in conflict with international
copyright law, even if the “new public” criterion has gone through two
corrections by the CJEU itself; there is a new public if communication is made
by different specific technical means and if access to the communication
through the internet is restricted.

6 comments:

Anonymous
said...

In my view the CJEU's approach leaves a lot to be desired, unnecessarily complicates copyright law and may well run into a dead end in future cases, but even the most fervent pro-copyright scholar should realise that one cannot expect a court to rule that posting a link as a rule infringes the copyright on the work linked to. No court is going to outlaw the Internet. Judges have common sense and ALAI better gets some, too.

I think the Court of Justice's approach isn't all that bad, and they have every right to interpret the Directive and Convention in this way. The idea that someone who has made their work available to the general public by placing it on the internet should then be able to claim infringement when someone simply post a link to that work is absurd. The copyright maximalists of the ALAI may dream of a world where the internet is illegal, but most of us are quite happy with it, thanks.

Worse, the idea that a link to a work which is protected with an access code is a "communication to the public" is nonsense, surely? If the public can't access it, it isn't communicated to them.

The logic of the ALAI opinion applies equally well to, say, references in an academic paper or in fact any explanation of how to obtain a copyright work lawfully from its owner.

There can be essentially no principled reason why the copyright owner needs the incentive of being able to control such a mention of its work. I find it extremely hard to enter the mindset of someone who thinks otherwise.

I agree with Francis and would like to see a distinction between URL links which are a bit like book references stating "here you can find this information" from embedding/framing content which shows the material in a new context on another web page. Embedding deprives the holder of the control of the context and since the URL is hidden the origin of the material is also hidden.In the urge to be technically neutral this important non-technical different is lost.

I have to ask: would it be parsing too finely to draw a distinction between general communication - which implicitly involves a back and forth capability - and communicating to someone - which does not implicitly involve 'the back' response?

If the distinction is allowable, then the ability to respond back is immaterial, and the fact that what is communicated is so communicated within a 'locked box' does not matter , as the item is still communicated to the public.

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